Wednesday, October 21, 2020

What’s Behind the Spat Over Justice Carolita Bethell?

The swearing in of Justice Carolita Bethel as Justice of the Court of Appeal on Thursday, stirred political debate.

Justice Bethell’s appointment by Governor General C.A Smith on recommendation by the government, was immediate. However, it was opposed by the Progressive Liberal Party.

Who is Carolita Bethell?

Bethell has served as a Supreme Court Justice, appointed in 2013 on recommendation by then PLP leader Perry Christie. At the time, Christie committed to appointing 20 Supreme Court judges to help with ‘swift justice’ and clearing of criminal backlog cases.

Chief Magistrate Roger Gomez and Deputy Chief Magistrate Carolita Bethel sworn in as justices of the Supreme Court by Governor General Sir Arthur Foulkes in 2013. Photo credit: Tribune

Although Bethell was appointed to the criminal court to assist with the Swift Justice, she stated, “I am not sure whether it is realistic or not. There are so many things that need to be in place, like the availability of witnesses, jury member and also the lawyers themselves. They have to be present.”

In May 2019, she was chosen to preside over the corruption trial of former Minister of Labor and National Insurance Shane Gibson, who is alleged to have received $610,000 in payments from contractor Jonathan, to clean-up efforts post Hurricane Matthew. Gibson was later acquitted.

Bethell’s husband is attorney Ferron Bethel, serving as director on the Bahamas Power and Light Board and was appointed Queen’s Counsel in February 2020.

Ferron Bethell
The husband of Justice Carolita Bethell. A director on the power company’s board. Photo credit: BPL

What is the Court of Appeal?

The Court of Appeal,  also known as the appellate court, is the highest Court resident in the Bahamas. It hears appeals against civil and criminal judgments, and exercises exclusive appellate jurisdiction over all judgments.

It hears and reviews appeals from cases heard in the lower courts.

Bethell joins a number of justices in the Court of Appeal: Jon Isaacs, Maureen Crane Scott, Roy Jones and Milton Evans.

The Hon. Justice Jon Isaacs sworn in as Acting President of the ... Madame Stella Maureen Crane- Scott was sworn in as Justice of the ... Hon. Justice Roy Jones sworn-in as Justice of the Court of Appeal ... Mr. Justice Milton Evans, Sworn In As Acting Justice of the Court ...

What is the process to becoming a Justice of Appeal?

The constitution says (1) The President of the Court of Appeal and other Justices of Appeal must be appointed by the Governor-General by instrument under the Public Seal on the recommendation of the Prime Minister after consultation with the Leader of the Opposition.

(2) The qualifications for appointment as a Justice of Appeal shall be such as may be prescribed by any law for the being in force: Provided that —

(i) a person shall not be qualified for appointment as a Justice of Appeal unless he holds or has held high judicial office; and

(ii) a person who has been appointed as a Justice of Appeal may continue in office notwithstanding any subsequent variations in the qualifications so prescribed.

Is that what happened?

Yes, it happened. Opposition Leader Philip Davis admits he had several consultative meetings with Prime Minister Hubert Minnis, but contends he voiced his opposition to the appointment of Bethell.

“I learned to my dismay that earlier this week Carolita Bethel had been appointed a Justice of Appeal. I had several consultations with the Prime Minister and indicated there is widespread, strong and fervent opposition to this appointment with which opposition I concurred.

Davis pointed to article 79 (5) instead which says the Governor-General can exercise any function on the recommendation of the Prime Minister after consultation with the Leader of the Opposition.

The following steps must be taken —

(a) the Prime Minister first consults the Leader of the Opposition and thereafter tender his recommendation to the Governor-General;

(b) the Governor-General informs the Leader of the Opposition of that recommendation and if the Leader of the Opposition concurs, then the Governor General acts in accordance with the recommendation;

(c) if the Leader of the Opposition does not concur with the recommendation, the Governor-General informs the Prime Minister and refer the recommendation back to him;

(d) the Prime Minister then advises the Governor-General and the Governor-General acts in accordance with that advice.

Davis never said why Bethell should not be appointed, only that, “My party is aware of the objections and the reasons why. They are cogent and should not have been dismissed by the Prime Minister. I did not think the consultations were complete.”

He called for a more open and transparent process which openly examines the fitness of a judge to be appointed to the court.”

In addition, Davis added that four other judges, senior to Bethel were passed over.

Davis was referring to Supreme Court Justices Estelle Gray Evans, Bernard Turner, Indra Charles and Vera Watkins.

Judicial Officers – The Judiciary of The Bahamas

“I remain opposed to the appointment,” Davis said.

What does the government say about the appointment?

Attorney General Carl Bethel said Davis “appears to seek to besmirch not only the process of appointment, but also to besmirch the Learned Justice of Appeal. This is unworthy of a person holding the constitutional office of Leader of the Opposition.”

Bethel points to article 99 (2), saying the process was followed and strictly adhered to. He added that Bethel has held “high judicial office” as a Supreme Court Justice for many years, and has fully satisfied the constitutional qualification for appointment as a Justice of Appeal.

He added that the Prime Minister, in accordance with Article 99(1) of the Constitution, consulted with Davis.

“His statement can only be viewed as a highly politicized attack, aimed at the Constitution itself, and the Learned Justice of Appeal personally.

“Similarly, the Learned Justice of Appeal has never been accused of any “misbehavior” or “inability” in the performance of her judicial responsibilities throughout the decades of her service to the Judiciary and the Bahamian People.

“The Leader of the Opposition’s Statement is, therefore, abusive both of the Constitution and is nothing more than a malignant, politicized abuse of the Justice of Appeal,” the AG said.

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